The case was heard by an arbitration board chaired by Harvey Frumkin, with Alistair Tilson as the APUO nominee and Brian Hendley as the employer nominee. Darryl Grandbois represented the employer and John Henderson represented the APUO.

The case involved a refusal of an application for a 6-month sabbatical leave, based on a record of low teaching evaluations or A-Reports.  At the faculty and then the Joint Committee, the sole reason given for a negative recommendation and decision was that the project was not considered feasible taking into account the record of A-Reports.  The project submitted by the member was to work on the development of innovative teaching materials, namely, a computer based teaching module, to be used in connection with one of the courses taught in the department.  APUO took the position that the employer used improper criteria by relying solely on teaching scores to refuse the sabbatical.  APUO argued that the employer had failed to justify the connection between the A-Reports and the feasibility of the project.  It was also argued that there was a failure to give adequate reasons for the refusal in the face of a dossier which indicated that the project met the criteria of the collective agreement.

In the award rendered 3 December 1998, the board of arbitration quashed the Joint Committee decision and ordered the matter to be reconsidered with due regard to the criteria set out in the collective agreement. 

Criteria

 The board of arbitration accepted the argument that the employer had incorrectly applied the criteria of the collective agreement.  While the board stated that teaching may be relevant in a particular case, such relevancy must be demonstrated by showing a link with the feasibility of the project.  The board accepted the evidence which demonstrated that the project met the criteria of the collective agreement in so far as the project was relevant and attainable by the professor.  The board found that the employer had misapplied the collective agreement by confining the deliberations to an assessment of teaching performance per se without considering how such performance could have had a bearing upon the feasibility of the project.  Therefore, the refusal was improper. The board stated:

 “Indeed, there is nothing in the evidence to even remotely suggest that the project submitted by the Grievor was not worthwhile and relevant within the meaning of Article 26.1.1 of the Collective Agreement, nor that the Grievor, were his application to be granted, would not carry out that project as presented.  The Grievor’s demonstrated qualifications for purposes of the project and his accomplishments remained unchallenged in the evidence.  .......

What emerges, therefore, is a case of denial of an application for sabbatical leave of a professor, otherwise eligible for that leave, sought for the purposes of a meritorious project, which that professor is quite capable of realizing based upon his qualifications, upon the ground of poor teaching performance, without regard to other factors as might operate to link that teaching performance with the feasibility of the proposed project.   ...

... There must be some link between concerns relating to the applicant or, for that matter, other relevant factors and the feasibility of the project. ...

As a result, this award confirms that the employer cannot refuse a sabbatical project on the basis of teaching performance per se.  If teaching performance or, indeed, any other factor, is to be considered in relation to the feasibility of the sabbatical, it must be linked to the feasibility of the actual project in one of two ways:  either in the sense of how that performance might affect the ability to carry out the project or, alternatively, how the project might prove detrimental to the performance.

In addressing the above issue, the board of arbitration also clarified the meaning of the term “privilege” which is used in the preamble to 26.1.1, the board stated:

            “The privilege of which Article 26.1.1 speaks is not a reward for exemplary service.  That privilege, rather, takes the form of an entitlement in favour of eligible faculty members who present projects which are relevant in light of the criteria which the Collective Agreement establishes and which are feasible, without regard to whether the faculty member is deserving of the leave which he seeks.  Merit where it bears no relationship to the ability of a faculty member, otherwise eligible, to carry out a relevant project, nowhere appears as a precondition for eligibility for sabbatical leave.”

Reasons

On the issue of the sufficiency of reasons, the board of arbitration did not find that there was a procedural failure to provide reasons.  The board found that reasons had been given, “albeit sparse in detail”.  The board differentiated this case from one such as discipline, where more detailed reasons would be required.  However, the board stated that the reasons given by the Joint Committee were insufficient to justify the decision, thereby resulting in an error of substance and a quashing of that decision. This award confirms that, apart from any procedural requirement to provide reasons, there is a substantive requirement to provide reasons that are sufficient to justify the decision.